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State lawmakers are firing back and threatening legal action against Gov. David Ige after he decided to replace a utility commissioner before the panel decides whether or not to allow the Hawaiian Electric-NextEra Energy merger.

The governor appointed Wednesday Thomas Gorak to the Public Utilities Commission, a move that he said got the okay from the attorney general.

Critics still aren’t sure it’s legal.

Key senators say they’re mulling legal options because it is being done without Senate confirmation.

The governor named Gorak, the PUC’s chief counsel, to start Friday on the panel of commissioners. Gorak would replace Michael Champley, whose term expires end of Thursday.

Senators call the move inconsistent, inappropriate, and possibly illegal. They tell Always Investigating the Senate is getting legal counsel on whether it can be blocked at the Circuit Court or directly to the Hawaii Supreme Court level.

“We just want to be sure that anyone who is going to sit on the decision as big as the NextEra decision meets all of the legal requirements,” said Senate president Ron Kouchi. “One remedy is simply to have the courts make a determination.”

It would be a determination as to whether Gorak can start work right away, or if Champley must stay on until the Senate can weigh in.

Always Investigating asked the governor as to the senators’ concerns, since Champley could have technically held over, why not make the effective date of the appointment after the most important docket, the HECO case, was decided?

“I was very clear in my mind that I wanted to make a change July 1,” Ige said. “I was hopeful and there definitely was adequate time for them to make the decision.”

We asked Ige, what would his reaction be if the senators do go so far as a legal challenge or other options they may have?

“I’m certain that they would proceed what they believe to be the best interest,” Ige said. “I proceeded in my view of what would be in the public’s best interest in this case. So I feel comfortable with the decisions that I made.”

And ready for a possible challenge?

“Certainly,” the governor said.

At issue is whether state statute should rule, which says a member shall hold office until an appointment gets “qualified,” not just announced. Senators say that means an expiring commissioner would have to stay a holdover until they’re back in session to qualify the appointee through Senate confirmation.

Champley’s seat isn’t vacant; he didn’t resign.

“That is how I read the applicable state statute. That is how others… have interpreted the statute as well,” Champley told Always Investigating.

The senators say Champley himself could also sue. Champley hasn’t told us if he is considering it.

The attorney general’s office tells us the state constitution lets the governor make an interim appointment, and that the utilities statute would have to defer or “conform” to the constitution in this case.

The governor got an attorney general opinion a few days ago clearing the move, though even the opinion does warn the governor the appointment could face a legal challenge because there’s not yet a case precedent about any holdovers versus interim appointments.

What hangs in the balance is the biggest-stakes docket the PUC has ever had in terms of deal size, and they’ve had more than a year and half to review it.

Gorak, as PUC lawyer, not only acted as litigator in the case in question and now would become essentially a judge on the very case, but he also helped write a draft decision that’s been circulating for nearly two months. The draft just needs consensus of two out of three commissioners to say yes or no.

Always Investigating asked the governor, “What do you say to those who say this was a vote-changer, whether they support or oppose an attempt to change a vote?”

“I do not know where the votes are in regards to the merger,” Ige said. “I do know that a term will expire today and I believe I’m entitled to make an appointment for July 1, and I exercised my authority.”